I'm going to try this one again, because I really want to get some serious discussion on it.
I was in some abortion discussions on another blog in which it was contended that no matter where you stood on the other issues, you nevertheless ought to vote for the Republicans because they take the right position the "transcendent" issue of the day, which is abortion. I tried to give people a sense of what they were asking me to do by asking me to do, since it was clear that this person probably would vote Republican even if the abortion issue didn't exist. On the other hand, I would have to vote against my convictions in virtually all other ways, in order to support candidates who at least have abortion right.
(I once said to a class of students that I thought that logically, Republicans should be pro-choice and Democrats should be pro-life, and got the enthustiasic support of a Republican student.)
So I suggested this scenario: suppose you had someone who is pro-life but a liberal Democrat on other issues, running against a pro-choice Republican. Who do you choose?
His answer was that so long as the Democrat was willing to nominate strict constructionist judges who would overturn Roe, that he would vote for the Democrat. The assumption is that the strict constructionist will overturn Roe, the "activist" will uphold it. One one blog I read that it was almost true by definition that a strict constructionist judge will be anti-Roe. Republicans like "strict constructionist" legal philosophies more than Democrats do, so that would make it highly unlikely that he would feel obligated to vote Democrat because of abortion.
But does it work that way really? Let's look at the Dred Scott case, to which pro-lifers love to compare Roe. If you set aside the idea that a Negro slave is a person with a right to liberty under the Constitution, the court came to exactly the right decision. Property rights are property rights, and to say that one's property is no longer one's property when it crosses state lines is ludicrous.
It seems to me that there is nothing especially strict constructionist about saying that the fetus does have a right to life. But just as, if you take the slave's right to liberty out of the equation, Dred Scott comes up right, if you take the fetus's right to life out of the equation, it seems to me that Roe is spot on. Pro-lifers like to argue that the Supreme Court "invented" a right to privacy, but could we tolerate a law invading our medical privacy if it concerned contraception, or vasectomies, or face-lifts? In other words, there is only one "strict constructionist" argument against Roe, and it seems to me to be a bad one.
Further, isn't it a little weird that you are upholding a fetus's right to life by denying rights to the pregnant mother instead of affirming the rights of the fetus? Why would anyone oppose abortion for any reason other than the right of the fetus to life?
Now maybe this doesn't matter to some people. Maybe it doesn't matter whether Roe is struck down for a bad reason, so long as it's struck down. Any port in a storm. But that just doesn't seem to me to be very honest. If you could prevent abortions by telling women lies about the psychological effects of abortion, should you do so?
Further, legal precedents have far-reaching implications. I am inclined to oppose outcome-based jurisprudence, accepting judicial principles that get the conclusions we like, whether they are sound across the board or not.
It seems to me the only honest way of arguing against Roe is to argue that the fetus at least possibly has the right to life, and that that right is of greater significance and importance than the right of privacy and medical autonomy that ought to hold sway on other medical matters.
It may be that strict constructionists judges may be demographically more inclined to rule against abortion, but there is no good logical pathway from strict constructionism to the overturning of Roe.